Citation Nr: 1816780 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 13-18 326A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating for peripheral neuropathy of the left upper extremity in excess of 10 percent prior October 31, 2015 and in excess of 30 percent thereafter. 2. Entitlement to a disability rating for peripheral neuropathy of the right upper extremity in excess of 10 percent prior October 31, 2015 and in excess of 40 percent thereafter. 3. Entitlement to a disability rating for peripheral neuropathy of the left lower extremity in excess of 10 percent prior October 31, 2015 and in excess of 40 percent thereafter. 4. Entitlement to a disability rating for peripheral neuropathy of the right lower extremity in excess of 10 percent prior October 31, 2015 and in excess of 40 percent thereafter. 5. Entitlement to an effective date earlier than August 6, 2012 for the grant of entitlement to total disability rating based on individual employability (TDIU) WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The September 2012 rating decision granted service connection for peripheral neuropathy of all extremities and assigned a 10 percent rating for each extremity, effective October 19, 2012. The January 2016 rating decision granted TDIU effective August 6, 2012. During the pendency of the appeal, a January 2016 rating decision granted an increased 30 percent rating for peripheral neuropathy of the left upper extremity; an increased 40 percent rating for the right upper extremity; an increased 40 percent rating for the left lower extremity; and an increased 40 percent rating for the right lower extremity, effective October 31, 2015. As this was not a grant of the full benefits sought on appeal and the RO did not assign the maximum disability ratings possible, the appeal for a higher disability evaluations remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In August 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At the time of the hearing, an attorney attended as his representative. It was discussed at the hearing that there was a VA Form 21-22 documenting this appointment. Thereafter, this attorney indicated that he was withdrawing from the appeal. Considering the rules regarding post-certification withdrawal of appeal in concert with the particular facts of this appeal, the Board will proceed with this appeal with the Veteran being unrepresented. FINDINGS OF FACT 1. Prior to October 31, 2015, the Veteran's neuropathy of the right and left upper extremities has manifested by no more than mild incomplete paralysis of the median and ulnar nerves as demonstrated by mild intermittent pain and mild numbness. 2. For the period beginning October 31, 2015, the Veteran's neuropathy of the right and left upper extremities has manifested by moderate incomplete paralysis of the radial, median and ulnar nerves as demonstrated by moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. 3. Prior to October 31, 2015, the Veteran's neuropathy of the right and left lower extremities has manifested by no more than mild incomplete paralysis of the sciatic and femoral nerves as demonstrated by mild intermittent pain and mild numbness. 4. For the period beginning October 31, 2015, the Veteran's neuropathy of the right and left lower extremities has manifested by moderately severe incomplete paralysis of the sciatic nerves and mild incomplete paralysis of the femoral nerves as demonstrated by moderate constant pain, moderate intermittent pain, severe paresthesias and/or dysesthesias and severe numbness. 5. The Veteran's dominant hand is his right hand. 6. Prior to August 6, 2012, the evidence of record does not reflect that the Veteran's service-connected disabilities prevented him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to October 31, 2015, the criteria for a rating greater than 10 percent for neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8512, 8513, 8515, 8516 (2017). 2. Prior to October 31, 2015, the criteria for a rating greater than 10 percent for neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8512, 8513, 8515, 8516 (2017). 3. For the period beginning October 31, 2015, the criteria for a rating greater than 30 percent for neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8512 - 8516 (2017). 4. For the period beginning October 31, 2015, the criteria for a rating greater 40 percent for neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8512 - 8516 (2017). 5. Prior to October 31, 2015, the criteria for a rating greater than 10 percent for neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8520, 8526 (2017). 6. Prior to October 31, 2015, the criteria for a rating greater than 10 percent for neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8520, 8526 (2017). 7. For the period beginning October 31, 2015, the criteria for a rating greater than 40 percent for neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2017). 8. For the period beginning October 31, 2015, the criteria for a rating greater than 40 percent for neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2017). 9. The criteria for an effective date prior to August 6, 2012, for the assignment of schedular TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 3.400, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran has not raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his Board hearing with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Merits of the Increased Rating Claims The regulations pertinent to this decision (38 C.F.R. §§ 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8512 - 8516, 8520) were initially provided in the July 2014 Statement of the Case and most recently in the February 2016 Supplemental Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. A note following the criteria for the upper extremity nerve groups states that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. As notice has previously been provided, the Board will focus and analyze how these relevant regulations determine the appropriate ratings considering all the relevant medical and lay evidence of record. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran seeks initial disability ratings higher than 10 percent for service-connected peripheral neuropathy of the left and right upper and lower extremities prior to October 12, 2015, and higher than 30 percent for the left upper extremity; higher than 40 percent for the right upper extremity; and higher than 40 percent for the left and right lower extremities thereafter. Period prior to October 31, 2015 Prior to October 31, 2015, peripheral neuropathy of the right and left upper extremities were rated under Diagnostic Code 8515 (median nerve) and peripheral neuropathy of the left and right lower extremities were rated under Diagnostic Code 8520 (sciatic nerve). A review of the medical record shows that the Veteran was first diagnosed with peripheral neuropathy of all extremities in 2013. A July 2013 VA examination report shows that the Veteran had mild intermittent pain and mild numbness of all extremities. Sensory function tests of all extremities found his sense of light touch was normal bilaterally. Reflex and strength testing demonstrated that the Veteran had normal reflexes and strength in all extremities. The examiner noted that there was no muscle atrophy or trophic changes. The examiner further noted that the Veteran had than mild incomplete paralysis of the median and ulnar nerves bilaterally and mild incomplete paralysis of the sciatic and femoral nerves bilaterally. Prior to the July 2013 VA examination, there is no evidence that the Veteran had peripheral neuropathy. Although the record contains an October 2012 statement from the Veteran's previous representative which states that the Veteran had increasing pain and numbness of the hands and feet, the medical evidence is silent for complaints, treatment and diagnosis of peripheral neuropathy. Notably, a September 2012 VA diabetes mellitus examination report shows that the Veteran did not have peripheral neuropathy. After a complete review of the record, the Board finds that the Veteran's bilateral diabetic neuropathy of the left and right upper and lower extremities manifested as no more than mild symptoms. The medical evidence indicates that in all extremities, the Veteran demonstrated normal reflexes, strength and sensation to light touch, with mild pain and numbness. As the peripheral neuropathy of the left and right upper extremities affected multiple nerves (median and ulnar), the Board also finds that prior to October 31, 2015, a 20 percent rating is warranted under Diagnostic Code 8512 for the Veteran's peripheral neuropathy of the left and right upper extremities. As indicated in the Note following the criteria for the upper extremity nerve groups, multiple nerve injuries of the upper extremities may not be rated separately, but they may be rated under the radicular group ratings. In this case, the 20 percent rating under the radicular group rating is more beneficial to the Veteran than the 10 percent assigned under Diagnostic Code 8515; therefore, the Board finds the diagnostic code used to rate the Veteran's peripheral neuropathy of the left and right extremities for the period prior to October 31, 2015 should be changed from Diagnostic Code 8515 to Diagnostic Code 8512 with a 20 percent rating for each upper extremity, effective October 19, 2012. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992) (indicating any change in diagnostic code must be specifically explained). The Board notes that the rating under the upper radicular group, middle radicular group and all radicular groups would still be 20 percent; therefore, the selected lower radicular group rating is sufficient. A higher 30 percent rating for the left upper extremity and 40 percent rating for the right upper extremity is not warranted for the period prior to October 31, 2015 because the evidence does not show that the neuropathy of the upper extremities manifested as moderate incomplete paralysis of the median and ulnar nerves. Peripheral neuropathy of the left and right lower extremities also affected multiple nerves; the sciatic nerves and the femoral nerves. Based on the findings in the July 2013 VA examination indicating mild incomplete paralysis of the sciatic nerve, the Board finds the 10 percent ratings currently assigned under Diagnostic Code 8520 for the left and right lower extremities is appropriate. However, the Board also finds that separate 10 percent ratings should be assigned under Diagnostic Code 8526 for the mild incomplete paralysis of the femoral nerves because these nerve branches of the lower extremities may be assigned separate ratings. See M21-1, Part III, Subpart iv, 4.N.4.e. Therefore, additional 10 percent ratings for peripheral neuropathy of the left and right lower extremities should be assigned under Diagnostic Code 8520, effective October 19, 2012. Higher 20 percent ratings for the left and right lower extremities are not warranted under Diagnostic Codes 8520 or 8526 for the period prior to October 31, 2015 because the evidence does not show that the neuropathy of the lower extremities manifested as moderate incomplete paralysis of the sciatic and/or femoral nerves. Period beginning October 31, 2015 From October 31, 2015, peripheral neuropathy of the right and left upper extremities is currently rated under Diagnostic Code 8513 (all radicular groups) and peripheral neuropathy of the left and right lower extremities is currently rated under Diagnostic Codes 8520 (sciatic nerve) and 8526 (femoral nerve). An October 2015 VA examination report shows that the Veteran has moderate constant pain and moderate intermittent pain in all extremities. It also shows that he has moderate paresthesias and/or dysesthesias and moderate numbness in his left and right upper extremities, and severe paresthsias and/or dysesthesias and severe numbness in his left and right lower extremities. Strength testing demonstrated less than normal strength in the Veteran's grip, pinch, ankle plantar flexion and ankle dorsiflexion. Reflex testing revealed normal reflexes in his biceps, triceps and knees, and decreased reflexes in his brachioradialises and ankles. Sensory testing of his shoulders, inner/outer forearms and knees/thighs were normal. His hand/fingers, ankles/lower legs and feet and toes demonstrated decreased sensation to light touch. Position sense testing of all extremities was normal. Vibration sense testing and cold sensation testing of all extremities showed decreased sensation. No muscle atrophy was noted. Trophic changes described as bilateral lower extremity hair loss were noted. The examiner further noted that the Veteran had moderate incomplete paralysis of the radial, median and ulnar nerves bilaterally, mild incomplete paralysis of femoral nerves bilaterally and moderately severe incomplete paralysis of the sciatic nerves bilaterally. Based on the findings in the October 2015 VA examination, the Board finds that the current disabilities ratings for all extremities are appropriate. The 30 percent disability rating under Diagnostic Code 8513 for the left upper extremity is appropriate because the record shows that the Veteran has moderate incomplete paralysis of the radial, median and ulnar nerves manifested by moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. A higher 60 percent rating is not warranted unless the neuropathy manifests as severe incomplete paralysis of the radial, median and ulnar nerves of the left extremity. Similarly, the 40 percent rating for the right upper extremity is appropriate as this is the rating for moderate incomplete paralysis of the radial, median and ulnar nerves of the major (dominant) hand. A higher 70 percent rating is not warranted as the evidence does not show that that there is severe incomplete paralysis of the radial, median and ulnar nerves of the right extremity. The current 40 percent disability rating for the left and right lower extremities are also appropriate as the record shows that the neuropathy of these extremities has manifested as moderately severe incomplete paralysis of the sciatic nerves bilaterally as demonstrated by moderate constant pain, moderate intermittent pain, severe paresthesias and/or dysesthesias and severe numbness. Higher 60 percent ratings are not warranted as there is no evidence of severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The Board notes that the RO assigned separate 10 percent ratings for the neuropathy of the left and right lower extremities manifested as moderately severe incomplete paralysis of the femoral nerves, effective October 31, 2015. A higher rating is not warranted as the evidence does not show severe incomplete paralysis of the femoral nerve with marked muscular atrophy; however, as discussed above, the assigned 10 percent rating is granted herein, effective October 19, 2012. Earlier Effective Date for TDIU A TDIU claim qualifies as a claim for increased disability compensation. A TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110 (a)(2012); 38 C.F.R. § 3.400 (2017). Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2017); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a) (prior to 2015). The Board notes that claims are now filed on standard forms, but these changes were made after the time period in question. See 38 C.F.R. § 3.155 (2017); 79 Fed. Reg. 57660-01 (March 24, 2015). TDIU is assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. § 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. See 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Where these requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Such claims should be submitted to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b) (interpreting 38 U.S.C. § 501). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a), Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends that his award of TDIU effective August 6, 2012 should be granted an earlier effective date. Based on the facts of this case and the applicable laws cited above, the Board finds that an earlier effective date for the award of TDIU is not warranted. The Veteran's service-connected disabilities prior to August 6, 2012, were nose and jaw disabilities, both rated at 0 percent disabling effective March 31, 2011 and diabetes mellitus rated at 20 percent disabling, effective July 17, 2012; As such, the Veteran did not meet the threshold requirements for a schedular TDIU prior to August 6, 2012. A September 2012 rating decision granted service connection for a skin disability with an assigned 60 percent rating and granted TDIU, both effective August 6, 2012. The effective dates assigned correlate with the dates that the Veteran filed his claims for the skin disability and TDIU. As of August 6, 2012, with the grant of service connection for a skin disability with an assigned 60 percent rating, his combined evaluation was 60 percent. Although the combined rating did not meet the schedular threshold for TDIU, TDIU was awarded based on the finding that the Veteran's skin disability resulted in his inability to secure or follow a substantially gainful occupation. The award of a TDIU was granted in a September 2012 rating decision based on the grant of service connection for a skin disability with an assigned 60 percent rating, effective August 6, 2012. It was also the date of receipt of the skin disability claim. The effective date of the TDIU award cannot be earlier than the effective date of service connection for the skin disability, as it is an award dependent upon the grant of the service-connected disability. The law provides that an effective date for an award of disability compensation, based on an original claim, a claim reopened after final disallowance, or a claim for increase, is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400. Here, the date of receipt of the skin disability and the TDIU claims on August 6, 2012 is the operative date for purposes of the TDIU claim, and no earlier date is permitted. The then-attorney made an argument regarding the duty to assist in this appeal regarding disabilities service-connected prior to August 6, 2012 (the date of service-connection for the skin disability upon which TDIU was granted). Review of the record, however, does not provide evidence that a TDIU was warranted on the basis of these separate disabilities. ORDER For the period prior to October 31, 2015, an increased 20 percent rating, but no higher, for peripheral neuropathy of the left upper extremity is granted, effective October 19, 2012. For the period prior to October 31, 2015, an increased 20 percent rating, but no higher, for peripheral neuropathy of the right upper extremity is granted, effective October 19, 2012. For the period beginning October 31, 2015, an increased rating greater than 30 percent for peripheral neuropathy of the left upper extremity is denied. For the period beginning October 31, 2015, an increased rating greater than 40 percent for peripheral neuropathy of the right upper extremity is denied. For the period prior to October 31, 2015, a separate 10 percent rating pursuant to Diagnostic Code 8526, but no higher, for peripheral neuropathy of the left lower extremity, is granted, effective October 19, 2012. For the period prior to October 31, 2015, a separate 10 percent rating pursuant to Diagnostic Code 8526, but no higher, for peripheral neuropathy of the right lower extremity, is granted, effective October 19, 2012. For the period beginning October 31, 2015, an increased rating greater than 40 percent for peripheral neuropathy of the left lower extremity is denied. For the period beginning October 31, 2015, an increased rating greater than 40 percent for peripheral neuropathy of the right lower extremity is denied. An effective date prior to August 6, 2012, for the award of a TDIU is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs